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G.R. No. 207147, September 14, 2016 - EMELITA BASILIO GAN, Petitioner, v.

REPUBLIC OF THE
PHILIPPINES, Respondent.

THIRD DIVISION

G.R. No. 207147, September 14, 2016

EMELITA BASILIO GAN, Petitioner, v. REPUBLIC OF THE PHILIPPINES, Respondent.

RESOLUTION

REYES, J.:

This is a petition for review on certiorari1 under Rule 45 of the Rules of Court seeking to annul
and set aside the Decision2 dated April 26, 2013 issued by the Court of Appeals (CA) in CA-G.R.
CV No. 98112.

Facts

Emelita Basilio Gan (petitioner) was born on December 21, 1956 out of wedlock to Pia Gan, her
father who is a Chinese national, and Consolacion Basilio, her mother who is a Filipino
citizen.3 The petitioner's birth certificate,4 which was registered in the Office of the Local Civil
Registrar (LCR) of Libmanan, Camarines Sur, indicates that her full name is Emelita Basilio.

On June 29, 2010, the petitioner filed a Petition5 for correction of name with the Regional Trial
Court (RTC) of Libmanan, Camarines Sur. The petitioner sought to change the full name
indicated in her birth certificate from "Emelita Basilio" to "Emelita Basilio Gan." She claimed that
she had been using the name "Emelita Basilio Gan" in her school records from elementary until
college, employment records, marriage contract, and other government records. 6 chanrobleslaw

Ruling of the RTC

On July 15, 2010, the RTC issued an Order, which noted that the petition filed sought not
merely a correction of entry in the birth certificate, but a change of name. Accordingly, the RTC
ordered the petitioner to make the necessary amendment to her petition to conform to the
requirements of Rule 103 of the Rules of Court.7 chanrobleslaw

The petitioner filed with the RTC an Amended Petition 8 dated August 3, 2010 for change of
name. The amended petition contained substantially the same allegations as in the petition for
correction of entry in the birth certificate. On August 10, 2010, the RTC set the initial hearing of
the petition in a newspaper of general circulation. The Office of the Solicitor General (OSG), as
counsel of the Republic of the Philippines (respondent), filed its notice of appearance. The OSG
authorized the Office of the Provincial Prosecutor of Libmanan, Camarines Sur to appear and
assist the OSG in the proceedings before the RTC. 9 chanrobleslaw

On July 19, 2011, after due proceedings; the RTC of Libmanan, Camarines Sur, Branch 29,
issued an Order10 granting the petition for change of name. The RTC, thus, directed the LCR of
Libmanan, Camarines Sur to change the petitioner's name in her birth certificate from "Emelita
Basilio" to "Emelita Basilio Gan." The RTC opined that, from the evidence presented, the said
petition was filed solely to put into order the records of the petitioner and that changing her
name in her birth certificate into Emelita Basilio Gan would avoid confusion in her personal
records.11chanrobleslaw

The respondent sought a reconsideration12 of the RTC Order dated July 19, 2011, alleging that
the petitioner, who is an illegitimate child, failed to adduce evidence that she was duly
recognized by her father, which would have allowed her to use the surname of her father. 13 On
October 17, 2011, the RTC issued an Order14 denying the respondent's motion for
reconsideration.

Ruling of the CA

On appeal, the CA, in its Decision15 dated April 26, 2013, reversed and set aside the RTC Orders
dated July 19, 2011 and October 17, 2011. The CA opined that pursuant to Article 176 of the
Family Code, as amended by Republic Act No. 9255,16 the petitioner, as an illegitimate child,
may only use the surname of her mother; she may only use the surname of her father if their
filiation has been expressly recognized by her father.17 The CA pointed out that the petitioner
has not adduced any evidence showing that her father had recognized her as his illegitimate
child and, thus, she may not use the surname of her father. 18 chanrobleslaw

In this petition for review, the petitioner maintains that the RTC correctly granted her petition
since she only sought to have her name indicated in her birth certificate changed to avoid
confusion as regards to her personal records. 19 She insists that her failure to present evidence
that her father recognized her as his illegitimate child is immaterial; a change of name is
reasonable and warranted, if it is necessary to avoid confusion.20 chanrobleslaw

Ruling of the Court

The petition is denied.

A change of name is a privilege and not a matter of right; a proper and reasonable cause must
exist before a person may be authorized to change his name. 21 "In granting or denying petitions
for change of name, the question of proper and reasonable cause is left to the sound discretion
of the court. x x x What is involved is not a mere matter of allowance or disallowance of the
request, but a judicious evaluation of the sufficiency and propriety of the justifications advanced
in support thereof, mindful of the consequent results in the event of its grant and with the sole
prerogative for making such determination being lodged in the courts." 22 chanrobleslaw

After a judicious review of the records of this case, the Court agrees with the CA that the reason
cited by the petitioner in support of her petition for change of name, i.e. that she has been
using the name "Emelita Basilio Gan" in all of her records, is not a sufficient or proper
justification to allow her petition. When the petitioner was born in 1956, prior to the enactment
and effectivity of the Family Code, the pertinent provisions of the Civil Code then regarding the
petitioner's use of surname provide: ChanRoblesVirtualawlibrary

Article 366. A natural child acknowledged by both parents shall principally use the surname of
the father. If recognized by only one of the parents, a natural child shall employ the surname of
the recognizing parent.

Article 368. Illegitimate children referred to in Article 287 shall bear the surname of the mother.
In her amended petition for change of name, the petitioner merely stated that she was
born out of wedlock;23 she did not state whether her parents, at the time of her birth,
were not disqualified by any impediment to marry each other, which would make her
a natural child pursuant to Article 269 of the Civil Code. If, at the time of the
petitioner's·birth, either of her parents had an impediment to marry the other, she
may only bear the surname of her mother pursuant to Article 368 of the Civil Code.
Otherwise, she may use the surname of her father provided that she was
acknowledged by her father.

However, the petitioner failed to adduce any evidence that would show that she indeed was duly
acknowledged by his father. The petitioner's evidence consisted only of her birth certificate
signed by her mother, school records, employment records, marriage contract, certificate of
baptism, and other government records. Thus, assuming that she is a natural child pursuant to
Article 269 of the Civil Code, she could still not insist on using her father's surname. It was,
thus, a blatant error on the part of the RTC to have allowed the petitioner to change her name
from "Emelita Basilio" to "Emelita Basilio Gan."

The petitioner's reliance on the cases of Alfon v. Republic of the Philippines,24Republic of the
Philippines v. Coseteng-Magpayo,25 and Republic of the Philippines v. Lim26 to support her
cralawre d

position is misplaced.

In Alfon, the name of the petitioner therein which appeared in her birth certificate was Maria
Estrella Veronica Primitiva Duterte; she was a legitimate child of her father and mother. She
filed a petition for change of name, seeking that she be allowed to use the surname "Alfon," her
mother's surname, instead of "Duterte." The trial court denied the petition, ratiocinating that
under Article 364 of the Civil Code, legitimate children shall principally use the surname of the
father. The Court allowed the petitioner therein to use the surname of her mother since Article
364 of the Civil Code used the word "principally" and not "exclusively" and, hence, there is no
legal obstacle if a legitimate child should choose to use the mother's surname to which he or
she is legally entitled.27 chanrobleslaw

In contrast, Articles 366 and 368 of the Civil Code do not give to an illegitimate child or a
natural child not acknowledged by the father the option to use the surname of the father. Thus,
the petitioner cannot insist that she is allowed to use the surname of her father.

In Coseteng-Magpayo, the issue was the proper procedure to be followed when the change
sought to be effected in the birth certificate affects the civil status of the respondent therein
from legitimate to illegitimate. The respondent therein claimed that his parents were never
legally married; he filed a petition to change his name from "Julian Edward Emerson Coseteng
Magpayo," the name appearing in his birth certificate, to "Julian Edward Emerson Marquez-Lim
Coseteng." The notice setting the petition for hearing was published and, since there was no
opposition thereto, the trial court; issued an order of general default and eventually granted the
petition of the respondent therein by, inter alia, deleting the entry on the date and place of
marriage of his parents and correcting his surname from "Magpayo" to "Coseteng." 28 The Court
reversed the trial court's decision since the proper remedy would have been to file a petition
under Rule 108 of the Rules of Court. The Court ruled that the change sought by the respondent
therein involves his civil status as a legitimate child; it may only be given due course through an
adversarial proceedings under Rule 108 of the Rules of Court. The Court's pronouncement
in Coseteng-Magpayo finds no application in this case.

Finally, Lim likewise finds no application in this case. In Lim, the petition that was filed was for
correction of entries under Rule 108 of the Rules of Court; the petition sought, among others, is
the correction of the surname of the respondent therein from "Yo" to "Yu." Further, the
respondent therein, although an illegitimate child, had long been using the surname of her
father. It bears stressing that the birth certificate of the respondent therein indicated that her
surname was the same as her father albeit misspelled. Thus, a correction of entry in her birth
certificate is appropriate.29 chanrobleslaw

Here, the petitioner filed a petition for change of name under Rule 103 and not a petition for
correction of entries under Rule 108. Unlike in Lim, herein petitioner's birth certificate indicated
that she bears the surname of her mother and not of her father.

WHEREFORE, in consideration of the foregoing disquisitions, the petition is DENIED.

SO ORDERED. chanRoblesvirtualLawlibrary

Carpio,*Velasco, Jr., (Chairperson), Bersamin,** and Perez, JJ., concur.

Endnotes:

*
Designated additional Member per Raffle dated October 13, 2014 vice Associate Justice Francis
H. Jardeleza.

**
Designated additional Member per Raffle dated February 17, 2016 vice Associate Justice
Diosdado M. Peralta.

Rollo, pp. 4-18.


1

2
Penned by Associate Justice Fernanda Lampas Peralta, with Associate Justices Francisco P.
Acosta and Angelita A. Gacutan concurring; id. at 21-29.

3
Id. at 21-22.

4
Id. at 30-31.

5
Id. at 33-35.

6
Id. at 33-34.
7
Id. at 22.

8
Id. at 36-38.

9
Id. at 23-24.

10
Issued by Presiding Judge Cecilia R. Borja-Soler; id. at 39-41.

11
Id. at 41.

12
Id. at 42-49.

13
Id. at 43.

14
Id. at 50-52.

15
Id. at 21-29.

16
AN ACT ALLOWING ILLEGITIMATE CHILDREN TO USE THE SURNAME OF THEIR FATHER,
AMENDING FOR THE PURPOSE ARTICLE 176 OF EXECUTIVE ORDER NO. 209, OTHERWISE
KNOWN AS THE "FAMILY CODE OF THE PHILIPPINES." Approved on February 24, 2004.

17
Rollo, p. 26.

18
Id. at 27.

19
Id. at 13.

20
Id. at 11.

21
See Oan v. Republic of the Philippines, 102 Phil. 468, 469-470 (1957).

22
Julian Lin Wang v. Cebu City Civil Registrar, 494 Phil. 149, 158 (2005).

23
Rollo, p. 36.

24
186 Phil. 600 (1980).

25
cralawred 656 Phil. 550 (2011).

26
464 Phil. 151 (2004).

27
Alfon v. Republic of the Philippines, supra note 24, at 603.

28
Republic of the Philippines v. Coseteng-Magpayo, supra note 25, at 552-554.

29
Republic of the Philippines v. Lim, supra note 26, at 155.
How to prove filiation; evidence needed.

BEN-HUR NEPOMUCENO Vs. ARHBENCEL ANN LOPEZ, represented by


her mother ARACELI LOPEZ, G.R. No. 181258, March 18, 2010

“x x x.

Herrera v. Alba[1] summarizes the laws, rules, and


jurisprudence on establishing filiation, discoursing in relevant part
as follows:

Laws, Rules, and Jurisprudence


Establishing Filiation

The relevant provisions of the Family Code provide as follows:

ART. 175. Illegitimate children may establish their illegitimate filiation in the
same way and on the same evidence as legitimate children.

xxxx

ART. 172. The filiation of legitimate children is established by any of the


following:

(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a
private handwritten instrument and signed by the parent concerned.

In the absence of the foregoing evidence, the legitimate filiation shall be


proved by:

(1) The open and continuous possession of the status of a legitimate


child; or
(2) Any other means allowed by the Rules of Court and special laws.

The Rules on Evidence include provisions on pedigree. The relevant


sections of Rule 130 provide:

SEC. 39. Act or declaration about pedigree. — The act or declaration of


a person deceased, or unable to testify, in respect to the pedigree of another
person related to him by birth or marriage, may be received in evidence where
it occurred before the controversy, and the relationship between the two
persons is shown by evidence other than such act or declaration. The word
"pedigree" includes relationship, family genealogy, birth, marriage, death, the
dates when and the places where these facts occurred, and the names of the
relatives. It embraces also facts of family history intimately connected with
pedigree.

SEC. 40. Family reputation or tradition regarding pedigree. —


The reputation or tradition existing in a family previous to the controversy, in
respect to the pedigree of any one of its members, may be received in
evidence if the witness testifying thereon be also a member of the family,
either by consanguinity or affinity. Entries in family bibles or other family books
or charts, engraving on rings, family portraits and the like, may be received as
evidence of pedigree.

This Court's rulings further specify what incriminating acts are


acceptable as evidence to establish filiation. In Pe Lim v. CA, a case
petitioner often cites, we stated that the issue of paternity still has to be
resolved by such conventional evidence as the relevant incriminating
verbal and written acts by the putative father. Under Article 278 of the
New Civil Code, voluntary recognition by a parent shall be made in the record
of birth, a will, a statement before a court of record, or in any authentic
writing. To be effective, the claim of filiation must be made by the putative
father himself and the writing must be the writing of the putative father. A
notarial agreement to support a child whose filiation is admitted by the
putative father was considered acceptable evidence. Letters to the
mother vowing to be a good father to the child and pictures of the putative
father cuddling the child on various occasions, together with the certificate of
live birth, proved filiation. However, a student permanent record, a written
consent to a father's operation, or a marriage contract where the putative
father gave consent, cannot be taken as authentic writing. Standing alone,
neither a certificate of baptism nor family pictures are sufficient to establish
filiation. (emphasis and underscoring supplied)

In the present case, Arhbencel relies, in the main, on the


handwritten note executed by petitioner which reads:

Manila, Aug. 7, 1999

I, Ben-Hur C. Nepomuceno, hereby undertake to give and provide


financial support in the amount of P1,500.00 every fifteen and thirtieth day of
each month for a total of P3,000.00 a month starting Aug. 15, 1999, to
Ahrbencel Ann Lopez, presently in the custody of her mother Araceli Lopez
without the necessity of demand, subject to adjustment later depending on the
needs of the child and my income.
The abovequoted note does not contain any statement
whatsoever about Arhbencel’s filiation to petitioner. It is, therefore,
not within the ambit of Article 172(2) vis-à-vis Article 175 of the
Family Code which admits as competent evidence of illegitimate
filiation an admission of filiation in a private handwritten instrument
signed by the parent concerned.

The note cannot also be accorded the same weight as


the notarial agreement to support the child referred to
in Herrera. For it is not even notarized. And Herrera instructs
that the notarial agreement must be accompanied by the
putative father’s admission of filiation to be an acceptable
evidence of filiation. Here, however, not only has petitioner
not admitted filiation through contemporaneous actions. He
has consistently denied it.

The only other documentary evidence submitted by


Arhbencel, a copy of her Certificate of Birth, [2]has no
probative value to establish filiation to petitioner, the latter not
having signed the same.

At bottom, all that Arhbencel really has is petitioner’s


handwritten undertaking to provide financial support to her which,
without more, fails to establish her claim of filiation. The Court is
mindful that the best interests of the child in cases involving
paternity and filiation should be advanced. It is, however, just as
mindful of the disturbance that unfounded paternity suits cause to
the privacy and peace of the putative father’s legitimate family.

x x x."

[1] G.R. No. 148220, June 15, 2005, 460 SCRA 197, 206-208.

[2] Rollo, p. 121.


When can an illegitimate child use the
surname of his father?
Posted on January 6, 2016by Erineus
Illegitimate children can use the surname of their father if:

1. Their filiation has been expressly recognized by the father through the
record of birth appearing in the civil registrar;
2. When an admission in a public document or a private handwritten
instrument is made by the father.
Children born out of wedlock, also known as illegitimate children, may use the
surname of the father under Republic Act No. 9255.

All you need is to file the necessary application with the civil registry of the
place where your child was born along with the following documents:

1. Certified true copy of child’s birth certificate (most require NSO


certificates)
2. Affidavit to Use the Surname of the Father
3. Valid IDs of parents or the registrant if 18 years or older.
4. For certificates of live birth with unknown fathers, submit additional
documents such as the affidavit of acknowledgment/paternity and
documents showing father’s signature like SSS, GSIS Policy Contract, ITR,
PhilHealth and other proof of filiation.
5. Note: In some cities/municipalities, the local civil registrar may require
the personal appearance of the mother and father to confirm their
identities.

Does the Use of father’s surname grant


legitimacy to child?
Posted on January 6, 2016by Erineus
What is an illegitimate child?
A child who is born of parents not married to each other or born out of
wedlock is an illegitimate child.

Children conceived and born outside a valid marriage are illegitimate, unless
otherwise provided in the Family Code of the Philippines (Article 165 of the
Family Code).
Who are considered illegitimate children?
The following are considered illegitimate children:

1. Children born to couples who are not legally married or of common-law


marriages;
2. Children born of incestuous marriages;
3. Children born of bigamous marriages;
4. Children born of adulterous relations between parents;
5. Children born of marriages void for reason of public policy under
Article 38 of the Family Code;
6. Children born of couples below 18, where they are married or not;
7. Children born of other void marriages under Article 15 unless otherwise
provided.
(OCRG. Cir. No. 89-13, 17 July 1989)
Are there different kinds of illegitimate children?
Yes. There are two kinds of illegitimate children. They are:

1. An unrecognized illegitimate child – the child is not acknowledged


by his biological father, and thus has to use the surname of his mother.
2. A recognized illegitimate child – the child is recognized or
acknowledged by his father. He is allowed to use the surname of his father.
The filiation can be recognized by the father through:
i) The recognition of the father of the child’s paternity through the
record of birth appearing in the civil register;

ii) When admission is made in a public document;

iii) When admission is made in a private handwritten document.

What do you mean by paternity and filiation?


Paternity and filiation refers to the relationship existing between parent and
child. Filiation may be by nature or adoption. Children may be legitimate or
illegitimate.
How can filiation be proven?
Filiations of legitimate (or illegitimate) children are established by any of the
following:

1. The record of birth appearing in the civil registry or a final judgment


2. An admission of legitimate (or illegitimate) filiation in a public
document or a private handwritten instrument and signed by the parent
concerned.
What if the child has no such proofs to prove his filiation to his
biological father?
In the absence of any of the above evidence, such legitimate or illegitimate
filiation may be proved by:

1. Open and continuous possession of the status of a legitimate or


illegitimate child;
2. Any other means allowed by the Rules of Court and special
laws. (Article 172 of the Family Code)
Does the Use of father’s surname grant legitimacy to child?
“Illegitimate children shall use the surname and shall be under the parental
authority of their mother, and shall be entitled to support in conformity with
this Code. However, illegitimate children may use the surname of their father
if their filiation has been expressly recognized by the father through the record
of birth appearing in the civil register, or when an admission in a public
document or private handwritten instrument is made by the father. Provided,
the father has the right to institute an action before the regular courts to prove
non-filiation during his lifetime. The legitime of each illegitimate child shall
consist of one-half of the legitime of a legitimate child” (As amended by
Republic Act No. 9255).

It is important to note that based on this cited provision, the general rule is
that the mother’s surname shall be used by an illegitimate child. However,
Republic Act No. 9255 amended this law to include a provision which now
allows an illegitimate child to use his father’s surname if the father expressly
recognizes the child as his own in a written document.

your son may use his father’s surname if the father signed the birth certificate
of your son, or if he acknowledged it in a public document or a private
handwritten document.

If, on the other hand, the father does not recognize your son, then the general
rule shall prevail wherein your surname shall be used by your son.
Furthermore, jurisprudence provides that the entry for the middle name of an
illegitimate child’s birth certificate must be left blank if the father does not
recognize the child. (Republic of the Philippines vs. Trinidad R.A. Capote
February 2007).

Also note that the cited provision does not grant legitimacy to a child. Thus,
even if an illegitimate child may use the surname of his father, the child’s
status as an illegitimate will not change.
When a petition for cancellation or correction
of an entry in the civil register involves
substantial and controversial alterations
including those on citizenship, legitimacy of
paternity or filiation, or legitimacy of
marriage, a strict compliance with the
requirements of Rule 108 of the Rules of
Court is mandated.
Posted on February 3, 2012by Erineus
A person can effect a change of name under Rule 103 (CHANGE OF NAME)
using valid and meritorious grounds including (a) when the name is
ridiculous, dishonorable or extremely difficult to write or pronounce; (b) when
the change results as a legal consequence such as legitimation; (c) when the
change will avoid confusion; (d) when one has continuously used and been
known since childhood by a Filipino name, and was unaware of alien
parentage; (e) a sincere desire to adopt a Filipino name to erase signs of
former alienage, all in good faith and without prejudicing anybody; and (f)
when the surname causes embarrassment and there is no showing that the
desired change of name was for a fraudulent purpose or that the change of
name would prejudice public interest.[17] Respondent’s reason for changing
his name cannot be considered as one of, or analogous to, recognized grounds,
however.
The present petition must be differentiated from Alfon v. Republic of the
Philippines.[18]In Alfon, the Court allowed the therein petitioner, Estrella
Alfon, to use the name that she had been known since childhood in order to
avoid confusion. Alfon did not deny her legitimacy, however. She merely
sought to use the surname of her mother which she had been using since
childhood. Ruling in her favor, the Court held that she was lawfully entitled to
use her mother’s surname, adding that the avoidance of confusion was
justification enough to allow her to do so. In the present case, however,
respondent denies his legitimacy.
The change being sought in respondent’s petition goes so far as to affect
his legal status in relation to his parents. It seeks to change his legitimacy to
that of illegitimacy. Rule 103 then would not suffice to grant respondent’s
supplication.
Labayo-Rowe v. Republic[19] categorically holds that “changes which
may affect the civil status from legitimate to illegitimate . . . are substantial
and controversial alterationswhich can only be allowed after appropriate
adversary proceedings . . .”
Since respondent’s desired change affects his civil status from legitimate to
illegitimate, Rule 108 applies. It reads:
SECTION 1. Who may file petition.—Any person interested in any act, event,
order or decree concerning the civil status of persons which has been
recorded in the civil register, may file a verified petition for the cancellation or
correction of any entry relating thereto, with the [RTC] of the
province where the corresponding civil registry is located.
xxxx

SEC. 3. Parties.—When cancellation or correction of an entry in the civil


register is sought, the civil registrar and all persons who have or
claim any interest which would be affected thereby shall be made
parties to the proceeding.
SEC. 4. Notice and publication. –Upon the filing of the petition, the court
shall, by an order, fix the time and place for the hearing of the same,
and cause reasonable notice thereof to be given to the persons
named in the petition. The court shall also cause the order to be published
once a week for three (3) consecutive weeks in a newspaper of general
circulation in the province. (emphasis, italics and underscoring supplied)
Rule 108 clearly directs that a petition which concerns one’s civil status should
be filed in the civil registry in which the entry is sought to be cancelled or
corrected – that ofMakatiin the present case, and “all persons who have or
claim any interest which would be affected thereby” should be made parties to
the proceeding.

As earlier stated, however, the petition of respondent was filed not


inMakatiwhere his birth certificate was registered but inQuezon City. And as
the above-mentioned title of the petition filed by respondent before the RTC
shows, neither the civil registrar ofMakatinor his father and mother were
made parties thereto.

Respondent nevertheless cites Republic v. Capote[20] in support of his claim


that his change of name was effected through an appropriate adversary
proceeding.
Republic v. Belmonte,[21] illuminates, however:
The procedure recited in Rule 103 regarding change of name and in Rule
108 concerning the cancellation or correction of entries in the civil registry
are separate and distinct. They may not be substituted one for the
other for the sole purpose of expediency. To hold otherwise would
render nugatory the provisions of the Rules of Court allowing the change of
one’s name or the correction of entries in the civil registry only upon
meritorious grounds. . . . (emphasis, capitalization and underscoring supplied)
Even assuming arguendo that respondent had simultaneously availed of these
two statutory remedies, respondent cannot be said to
have sufficiently complied with Rule 108. For, as reflected above, aside
from improper venue, he failed to implead the civil registrar
of Makati and all affected parties as respondents in the case.
Republic v. Labrador[22] mandates that “a petition for
a substantial correction or change of entries in the civil registry should
have as respondents the civil registrar, as well as all other persons who have
or claim to have any interest that would be affected thereby.” It cannot be
gainsaid that change of status of a child in relation to his parents is a
substantial correction or change of entry in the civil registry.
Labayo-Rowe[23] highlights the necessity of impleading indispensable
parties in a petition which involves substantial and controversial alterations.
In that case, the therein petitioner Emperatriz Labayo-Rowe (Emperatriz)
filed a petition for the correction of entries in the birth certificates of her
children, Vicente Miclat, Jr. and Victoria Miclat, in the Civil Registry of San
Fernando, Pampanga. Emperatriz alleged that her name appearing in the
birth certificates is Beatriz, which is her nickname, but her full name is
Emperatriz; and her civil status appearing in the birth certificate of her
daughter Victoria as “married” on “1953 Bulan” are erroneous because she was
not married to Vicente Miclat who was the one who furnished the data in said
birth certificate.
The trial court found merit in Emperatriz’s petition and accordingly directed
the local civil registrar to change her name appearing in her children’s birth
certificates from Beatriz to Emperatriz; and to correct her civil status
inVictoria’s birth certificate from “married” to “single” and the date and place
of marriage to “no marriage.”

On petition before this Court after the Court of Appeals found that the order of
the trial court involved a question of law, the Court nullified the trial court’s
order directing the change of Emperatriz’ civil status and the filiation of her
child Victoria in light of the following observations:

x x x x Aside from the Office of the Solicitor General, all other


indispensable partiesshould have been made respondents. They
include not only the declared father of the child but the child as well,
together with the paternal grandparents, if any, as their hereditary rights
would be adversely affected thereby. All other persons who may be affected by
the change should be notified or represented. The truth is best ascertained
under an adversary system of justice.
The right of the child Victoria to inherit from her parents would be
substantially impaired if her status would be changed from “legitimate” to
“illegitimate.” Moreover, she would be exposed to humiliation and
embarrassment resulting from the stigma of an illegitimate filiation that she
will bear thereafter. The fact that the notice of hearing of the petition was
published in a newspaper of general circulation and notice thereof was served
upon the State will not change the nature of the proceedings taken. Rule 108,
like all the other provisions of the Rules of Court, was promulgated by the
Supreme Court pursuant to its rule-making authority under Section 13, Article
VIII of the 1973 Constitution, which directs that such rules “shall not
diminish, increase or modify substantive rights.” If Rule 108 were to be
extended beyond innocuous or harmless changes or corrections of errors
which are visible to the eye or obvious to the understanding, so as to
comprehend substantial and controversial alterations
concerning citizenship, legitimacy of
paternity or filiation, or legitimacy of marriage, without observing the
proper proceedings as earlier mentioned, said rule would thereby become
an unconstitutional exercise which would tend to increase or modify
substantive rights. This situation is not contemplated under Article 412 of
the Civil Code.[24] (emphasis, italics and underscoring supplied)
As for the requirement of notice and publication, Rule 108 provides:

SEC. 4. Notice and publication.—Upon the filing of the petition, the


court shall, by an order, fix the time and place for the hearing of
the same, and cause reasonable notice thereof to be given to the
persons named in the petition. The court shall also cause the order to
be published once a week for three (3) consecutive weeks in a newspaper of
general circulation in the province.
SEC. 5. Opposition.—The civil registrar and any person having or
claiming any interest under the entry whose cancellation or
correction is sought may, within fifteen (15) days from notice of the
petition, or from the last date of publication of such notice, file his
opposition thereto. (emphasis and underscoring supplied)
A reading of these related provisions readily shows that Rule 108 clearly
mandates two sets of notices to different “potential oppositors.”
The first notice is that given to the “persons named in the petition” and
the second (which is through publication) is that given to other persons who
are not named in the petition but nonetheless may be considered interested or
affected parties, such as creditors. That two sets of notices are mandated
under the above-quoted Section 4 is validated by the subsequent Section 5,
also above-quoted, which provides for two periods (for the two types of
“potential oppositors”) within which to file an opposition (15 days from
notice or from the last date of publication).
This is the overriding principle laid down in Barco v. Court of Appeals.[25] In
that case, Nadina Maravilla (Nadina) filed a petition for correction of entries
in the birth certificate of her daughter June from June Salvacion Maravilla to
June Salvacion “Gustilo,” Armando Gustilo being, according to Nadina, her
daughter’s real father. Gustilo in fact filed before the trial court
a “CONSTANCIA” wherein he acknowledged June as his daughter. The trial
court granted the petition.
After Gustilo died, his son Jose Vicente Gustilo filed with the Court of Appeals
a petition for annulment of the Order of the trial court granting the change of
June’s family name to Gustilo.

Milagros Barco (Barco), natural guardian of her minor daughter Mary Joy
Ann Gustilo, filed before the appellate court a motion for intervention,
alleging that Mary Joy had a legal interest in the annulment of the trial court’s
Order as Mary Joy was, by Barco’s claim, also fathered by Gustilo.

The appellate court dismissed the petition for annulment and complaint-in-
intervention.

On appeal by Barco, this Court ruled that she should have been impleaded in
Nadina’s petition for correction of entries of the birth certificate of Mary Joy.
But since a petitioner, like Nadina, is not expected to exhaustively identify all
the affected parties, the subsequent publication of the notice cured the
omission of Barco as a party to the case. Thus the Court explained:
Undoubtedly, Barco is among the parties referred to in Section 3 of Rule 108.
Her interest was affected by the petition for correction, as any judicial
determination that June was the daughter of Armando would affect her ward’s
share in the estate of her father. It cannot be established whether Nadina
knew of Mary Joy’s existence at the time she filed the petition for
correction. Indeed, doubt may always be cast as to whether a
petitioner under Rule 108 would know of all the parties whose
interests may be affected by the granting of a petition. For
example, a petitioner cannot be presumed to be aware of all the
legitimate or illegitimate offsprings of his/her spouse or paramour.
x x x x.
xxxx

The purpose precisely of Section 4, Rule 108 is to bind the whole world to the
subsequent judgment on the petition. The sweep of the decision would
cover even parties who should have been impleaded under Section
3, Rule 108 but were inadvertently left out. x x x x.[26] (emphasis,
italics and underscoring supplied)
Meanwhile, in Republic v. Kho,[27] Carlito Kho (Carlito) and his siblings
named the civil registrar as the sole respondent in the petition they filed for
the correction of entries in their respective birth certificates in the civil
registry ofButuanCity, and correction of entries in the birth certificates of
Carlito’s minor children. Carlito and his siblings requested the correction in
their birth certificates of the citizenship of their mother Epifania to “Filipino,”
instead of “Chinese,” and the deletion of the word “married” opposite the
phrase “Date of marriage of parents” because their parents ─ Juan and
Epifania ─ were not married. And Carlito requested the correction in the birth
certificates of their children of his and his wife’s date of marriage to reflect the
actual date of their marriage as appearing in their marriage certificate. In the
course of the hearing of the petition, Carlito also sought the correction of the
name of his wife from Maribel to “Marivel.”
The Khos’ mother Epifania took the witness stand where she declared that she
was not married to Juan who died before the filing of the Khos’ petition.

The trial court granted the petition.

On the issue of whether the failure to implead Marivel and the Khos’ parents
rendered the trial of the petition short of the required adversary proceedings
and the trial court’s judgment void, this Court held that when all the
procedural requirements under Rule 108 are followed, the publication of the
notice of hearing cures the failure to implead an indispensable party. In so
ruling, the Court noted that the affected parties were already notified of the
proceedings in the case since the petitioner-siblings Khos were the ones who
initiated the petition respecting their prayer for correction of their citizenship,
and Carlito respecting the actual date of his marriage to his wife; and, with
respect to the Khos’ petition for change of their civil status from legitimate to
illegitimate, their mother Epifania herself took the witness stand declaring
that she was not married to their father.
What is clear then in Barco and Kho is the mandatory directive under Section
3 of Rule 108 to implead the civil registrar and the parties who would
naturally and legally be affected by the grant of a petition for correction or
cancellation of entries. Non-impleading, however, as party-respondent of one
who is inadvertently left out or is not established to be known by the
petitioner to be affected by the grant of the petition or actually participates in
the proceeding is notified through publication.
IN FINE, when a petition for cancellation or correction of an entry in the
civil register involves substantial and controversial alterations including
those on citizenship, legitimacy of paternity or filiation, or legitimacy of
marriage, a strict compliance with the requirements of Rule 108 of the Rules
of Court is mandated.
Special Proceedings: Rule 103, Rule 108, RA 9048
SPECIAL PROCEEDINGS
Rules 103 & 108; RA 9048
By Olive Cachapero

RULE 103 RULE 108 RA 9048


Title Change of name (name which Cancellation or correction of Correct a clerical or
appears in the civil register) entries in the civil registry typographical error in an entry
and/or change of first name or
nickname
Nature Adversarial; Adversarial; Summary;
judicial; judicial administrative; No judicial order
substantial change Substantial error necessary
in rem – to vest jurisdiction, Clerical/typographical
comply with all the error; change of first name or
requirements nickname - changes or
not a matter of right but of corrections of a harmless and
judicial discretion and a innocuous nature
privilege
Petitioner All natural persons regardless Any person interested in any Any person having direct and
of status, including domiciled act, event, order or decree personal interest in the
aliens concerning the civil status of correction of a clerical or
persons which has been typographical error
recorded in the civil register

Parties the civil registrar and The city/municipal civil


all persons who have or registrar, Consul General,
claim any interest which including the Clerk of the
would be affected thereby Shari'a Court in his capacity as
shall be made parties to the District or Circuit Registrar of
proceeding. Muslim Marriages, Divorces,
Revocations of Divorces and
Conversions, are hereby
authorized to correct clerical or
typographical error and to
change first name or nickname
in the civil register.
Subject First name, entries in the civil register clerical or typographical errors
matter nickname, may be cancelled or and
middle name, corrected: change of first name or
surname births; nickname
marriage;
deaths;
legal separations;
judgments of annulments of
marriage;
judgments declaring
marriages void from the
beginning;
legitimations;
adoptions;
acknowledgments of natural
children;
naturalization;
election, loss or recovery of
citizenship;
civil interdiction;
m) judicial determination of
filiation;
voluntary emancipation of a
minor; and
changes of name.

Venue RTC of the province in which RTC of the province where with the local civil registry
he resides, or, the corresponding civil office of the city or municipality
in the City of Manila, to the registry is located. where the record being sought
Juvenile and Domestic to be corrected or changed is
Relations Court. kept.

In case the petitioner has


already migrated to another
place in the country - the
petition may be filed, in person,
with the local civil registrar of
the place where the interested
party is presently residing or
domiciled.

Citizens of the Philippines who


are presently residing or
domiciled in foreign countries
may file their petition, in
person, with the nearest
Philippine Consulates.

Contents of That the petitioner has been The affidavit shall set forth
Petition or a bona fide resident of the facts necessary to establish the
affidavit province where the petition is merits of the petition and
filed for at least 3 years prior to shall show affirmatively that
the date of such filing; the petitioner is competent to
The cause for which the change testify to the matters stated.
of the petitioner's name is The petitioner shall state the
sought; particular erroneous entry or
The name asked for. entries, which are sought to be
corrected and/or the change
sought to be made.

Form A petition for change of name a verified petition for the The verified petition shall be in
shall be signed andverified by cancellation or correction of the form of an affidavit,
the person desiring his name any entry relating thereto subscribed and sworn to before
changed, or some other person any person authorized by the
on his behalf, law to administer oaths.
Notice, Court shall direct that a copy of Court shall cause reasonable Sec. 9
Publication the order be published before notice thereof to be given to
& posting the hearing at least once a week the persons named in the
for 3 successive weeks in some petition. (publication is
newspaper of general sufficient to include all
circulation published in the interested parties.)
province, as the court shall
deem best.
The court shall also cause the
order to be published once a
week for 3 consecutive weeks
in a newspaper of general
circulation in the province.
Hearing The date set for the hearing
shall not be within 30 days
prior to an election nor within 4
month after the last publication
of the notice.

Oppositor Any interested person The civil registrar and Non-adversarial


The Solicitor General or the any person having or
proper provincial or city fiscal claiming any interest under
shall appear on behalf of the the entry whose cancellation
Government of the Republic. or correction is sought
within fifteen (15) days from
notice of the petition, or from
the last date of publication of
such notice, file his
opposition thereto.

Grounds when the name is ridiculous, The petitioner finds the first
tainted with dishonor, or is name or nickname to be
extremely difficult to write or ridiculous, tainted with
pronounce; dishonor or extremely difficult
when the request for change is to write or pronounce.
a consequence of a change of The new first name or
status, such as when a natural nickname has been habitually
child is acknowledged or and continuously used by the
legitimated; and petitioner and he has been
when the change is necessary publicly known by that by that
to avoid confusion, first name or nickname in the
having continuously used and community: or
had been known since The change will avoid
childhood by a Filipino name, confusion.
unaware of her alien parentage;
a sincere desire to adopt a
Filipino name to erase signs of
a former alienage, al in good
faith and without prejudicing
surname causes embarrassment
and here is no showing the
desired change of name was for
a fraudulent purpose or that it
would prejudice public interest.

Judgment that such name be changed in court may either dismiss the When the petition for a change
accordance with the prayer of petition or issue an order of first name is approved by the
the petition. granting the cancellation or C/MCR or CG or D/CR and
correction prayed for. such decision has not been
impugned by the CRG, the
change shall be reflected in the
birth certificate by way of
marginal annotation.
Service of Judgments or orders – shall be In either case (dismissed or
judgment furnished the civil registrar of granted), a certified copy of
the municipality or city where the judgment shall be served
the court issuing the same is upon the civil registrar
situated, who shall concerned who
forthwithenter the same in the shall annotatedthe same in
civil register his record.
Example Adopted child’s change of Illegitimacy
surname Sex
Nationality/citizenship
Civil status

NOTES

RULE 103
 Lack of verification – not jurisdictional; only renders the pleading fatally defective (which may be corrected) hence
warrants dismissal of the petition
 The petition must be filed by the person desiring to change his/her name, even if it may be signed and verified by some
other person (example mother of a minor. The minor would have to file the petition herself when she reaches the age
of majority)
 All names or aliases must appear in the caption of the petition – omission is fatal to the petition
 Purpose of publication: to apprise the public of the pendency of the petition so that those who may know of any legal
objection to it might come forward with the iformation in order to determine the fitness of the petitioner…”
(jurisdictional)
 A petition to change the name of an infant should be granted only where to do so is clearly for the best interest of the
child (petition filed by the mother)
 Insufficient grounds for change of name:
 Separation of spouses
 No proof of prejudice by use of official name
 Mere use and known y different name
 No proof hat true name evokes derisive laughter
RULE108
 Applies only to substantial changes and corrections in entries in the civil register. Under Rep. Act No. 9048, a
correction in the civil registry involving the change of sex is not a mere clerical or typographical error. It is a
substantial change for which the applicable procedure is Rule 108 of the Rules of Court.
 Note: Te correction should not imply a change of status but a mere rectification of error; there must be no increase or
diminution of substantive right
 The child may not collaterally impugn his legitimacy as entered in the register in an action of partition (purpose:
declare him illegitimate); but he may file this petitioner mother is not the latter’s child at all)
 A clerical error is one which is visible to the eyes or obvious to the understanding; an error made by a clerk or a
transcriber; a mistake in copying or writing, or a harmless change such as a correction of name that is clearly
misspelled or of a misstatement of the occupation of the parent. Substantial or contentious alterations may be
allowed only in adversarial proceedings, in which all interested parties are impleaded and due process is properly
observed.
 Period to file petition: from discovery of error
 Purpose of proceedings: establish the status or right of a party, or a particular fact
 The recognition of the foreign divorce decree may be made in a Rule 108 proceeding itself, as the object of special
proceedings (such as that in Rule 108 of the Rules of Court) is precisely to establish the status or right of a party or a
particular fact. Moreover, Rule 108 of the Rules of Court can serve as the appropriate adversarial proceeding by which
the applicability of the foreign judgment can be measured and tested in terms of jurisdictional infirmities, want of
notice to the party, collusion, fraud, or clear mistake of law or fact.

RA 9048
 The correction of clerical or typographical error shall be availed of only once with respect to a particular entry or entries
in the same civil registry record. However, with regard to the change of first name or nickname in the birth certificate,
the privilege shall be availed of only once subject to Rule 12 hereunder.

Examples
 But if your birth certificate shows Ma. Cecilia instead of Maria Cecilia – cannot be corrected under 9048, it is not
typographical error. You have to avail of Art. 103
 Corpuz and Corpus or Gutierrez and Gutierres – not typographical errors
 Another example: First name is Enrile and family name is Teodoro (baliktad diba?). If interchanged, it is not
innocuous. If it affects business relations or otherwise rights and obligations, you haveto go to 108
 The error is innocuous. (ex. Date of birth is 1989 but what appears is 1889; a woman gave birth when she was 35yo but
what appears is she gave birth when she was 5yo) – clearly typographical error

 NOTE: But there are special cases where because of evidence presented were considered under 9048, so it is now a
matter of evidence. As long as you can support your claim, and the best support would be also documents regarding
the name of your parents, brothers and sisters, grandparents. (Example: Their names are also Gutierrez and not
Gutierres). If you can prove that it was typographical error, it will fall under 9048.